Clin v Walter Lilly & Co. Ltd

The Court of Appeal dismissed the appeal. The court held that the question whether works amount to "demolition" for the purposes of s.74 of the Planning (Listed Buildings and Conservation Areas) Act 1990 is a matter of fact and degree to be assessed primarily by reference to the extent (a quantitative assessment) of the works, applying the principles in Shimizu (UK) Ltd v Westminster City Council. Section 72 (the duty to pay special attention to the desirability of preserving or enhancing the character or appearance of a conservation area) does not require a separate qualitative assessment of character and appearance when deciding the threshold question whether conservation area consent (or demolition permission) is required; that qualitative assessment is relevant to the subsequent decision whether consent should be granted. The judge below did not misapply Shimizu and his factual findings that the works amounted to substantial demolition were within the bounds of proper appellate restraint.

This was an appeal from a Technology and Construction Court decision ([2019] EWHC 945 (TCC) by Waksman J) in a contractual dispute arising from a JCT building contract for major works to two adjoining houses in a conservation area. The claimant-contractor, Walter Lilly, sought declarations that the employer, Mr Clin, was contractually responsible for c.53.2 weeks' delay caused by the local planning authority's insistence in 2013 that conservation area consent (CAC) was required. The central issue was whether the proposed works amounted to "demolition" under s.74 of the Planning (Listed Buildings and Conservation Areas) Act 1990, thereby making CAC necessary.

• Nature of the claim: declaratory relief under the building contract (entitlement to extension of time and loss and expense because of a Relevant Event / Relevant Matter) arising from an asserted failure by the employer to obtain planning permissions.
• Procedural history: proceedings in the TCC resulted in a judgment that the works amounted to substantial demolition and CAC was required; appeal to the Court of Appeal followed. Earlier interlocutory and substantive decisions included Edwards-Stuart J ([2016] EWHC 357 (TCC)) and a prior Court of Appeal decision recognising an implied term that the employer use all due diligence to obtain required planning permissions ([2018] EWCA Civ 490).
• Issues framed: (i) whether s.72 required the threshold demolition inquiry under s.74 to include a qualitative assessment of contribution to the character and appearance of the conservation area; (ii) whether the judge erred in law or fact in applying Shimizu and in concluding that the works amounted to demolition despite retention of significant parts of the façades and party walls; (iii) whether other errors of reasoning undermined the conclusion that CAC was required.
• Court’s reasoning: the court endorsed a quantitative approach derived from Shimizu: demolition may occur without removal of every part of a building where so much of the building is removed as to clear the site for redevelopment. Section 72 does not compel a developer or the court to undertake a full qualitative character-and-appearance assessment when deciding the preliminary question whether demolition (and therefore CAC) is required; that assessment belongs to the subsequent consent decision. The judge’s factual findings, including reliance on the expert evidence and the local authority’s contemporaneous view, were not shown to be plainly wrong or infected by legal error, and appellate restraint applied. The appeal was therefore dismissed.

Appeal dismissed. The Court of Appeal held that the test for demolition under s.74 is a question of fact and degree to be assessed quantitatively in line with Shimizu; s.72 does not require a separate qualitative assessment of character and appearance when deciding whether demolition occurs; the judge below did not err in law or in fact in finding the works amounted to substantial demolition and that conservation area consent was required, entitling the contractor to an extension of time and relief under the contract.

Appeal from the Technology and Construction Court (Waksman J) ([2019] EWHC 945 (TCC)). The dispute followed earlier TCC proceedings (Edwards-Stuart J: [2016] EWHC 357 (TCC)) and an earlier Court of Appeal decision recognising an implied employer obligation to use all due diligence to obtain required planning permissions ([2018] EWCA Civ 490). This judgment is the Court of Appeal determination ([2021] EWCA Civ 136).